Hororata TC 12 February 2023 – R3 – Terry Chmiel

BACKGROUND:

Following the running of Race 3, John Morrison, Ken McRae & Dave McHugh Pace, the Respondent Driver, Terry Chmiel, as the Driver of EDDIE JAMES in the race, denied a charge that he misconducted himself by punching that horse in the abdomen on one occasion prior to the start.

Rule 303 provides:

(2)  No person or body who holds a permit or licence under these Rules and no owner, trainer, breeder, stablehand, unlicensed apprentice or racing manager shall misconduct himself . . .

EVIDENCE:

Stipendiary Steward, Paul Williams, showed a video replay of the Trackside 1 channel coverage of an incident prior to the start of the race. The horse, EDDIE JAMES, was being held by two Starter’s Assistants and the Respondent was attending to something on the near side of the horse. The Respondent was holding his whip in his right hand and punched the horse in the abdomen with the butt end of the whip, Mr Williams alleged.

The Respondent said that the horse had blinds on and a hood, and could not hear him. The horse had been “lashing out” with his back feet, which was not shown on the video, as he was attending to the hopple shorteners. He had given it a “tap”, he said, to tell the horse to behave. It was a “safety issue”, he submitted, and done without malice.

DECISION:

The charge is found proved.

REASONS FOR DECISION:

The Adjudicative Committee accepts the Respondent’s explanation that his actions were well-meaning, and it was clear from the video evidence that the horse was proving difficult.

Notwithstanding that his intentions were good, the Respondent’s actions were improper and unacceptable and the Adjudicative Committee finds that he has misconducted himself. “Misconduct” is simply improper behaviour. There may have been a safety issue, but there were other options open to the Respondent, for example, a flat palm to the ribcage of the horse. Instead, the Respondent, however well-meaning, has poked or stabbed the horse in the ribs with the butt end of his whip.

SUBMISSIONS FOR PENALTY:

Mr Williams referred the Adjudicative Committee to the Penalty Guide. The starting for a breach of the Rule is suggested as a fine of $600, but is referred to as being “fact dependent”. The Respondent has a clear record.

An aggravating factor is that the Stewards have already received a complaint from someone who viewed the incident on Trackside, Mr Williams said. It was this call that had drawn Stewards’ attention to the incident, he said. In mitigation, it was not a “strong action” on the part of the Respondent.

Mr Williams submitted that a fine of not less than $500 is an appropriate penalty.

In response, the Respondent said that he should not have done it, but repeated that there was no malice involved. He had reacted to the horse’s bad behaviour and was afraid of being kicked.

REASONS FOR PENALTY:

The Adjudicative Committee noted that the RIB Penalty Guide (effective 1 February 2023) suggests that the penalty for misconduct is “fact dependent”, with a starting point of a fine of $600.

The Adjudicative Committee was not able to find a case in the Harness Code with similar facts to assist it in deciding penalty, and it is to be expected that such cases will be rare. However, a fine of $400 was imposed on a Jockey, in a very recent Australian case, for kicking a horse in the stomach at a trials meeting. This is of some assistance, but the Adjudicative Committee is not aware of the full facts in that case. New Zealand cases are also in the Thoroughbred Code. In a November 2020 case, a Jockey received a fine of $500 for striking his horse with the whip three times behind the starting barrier. That was a second breach. In October 2021, another Jockey was fined $350 for striking his mount twice in the birdcage post-race.

While the Adjudicative Committee accepts that no harm was done to the horse, with such actions being shown on nationwide television coverage (an aggravating factor), they do raise obvious animal welfare concerns and, therefore, cannot be condoned, but rather must be viewed seriously. Fortunately, such incidents are rare. At the same time, the Adjudicative Committee accepts that there are also Driver-safety issues involved where the horse is proving fractious.

CONCLUSION:

Having regard to the Penalty Guide starting point of a $600 fine, the circumstances of this case and, having regard to the penalties in the previous cases referred to, the Respondent is fined $400.